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Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico

November 8, 2001

PEPSI-COLA BOTTLING COMPANY OF PITTSBURG, INC., PLAINTIFF,
v.
PEPSICO, INC. BOTTLING GROUP L.L.C., DEFENDANTS.



The opinion of the court was delivered by: David J. Waxse United States Magistrate Judge

MEMORANDUM AND ORDER

Pending before the Court is Plaintiff's Motion for Reconsideration (doc. 128). Plaintiff requests that the Court reconsider its August 22, 2001 Order (doc. 121) in which the Court denied Plaintiff's oral motion to compel witness Gerard Casey to answer the deposition question inquiring into which documents he reviewed in preparation for his deposition.

On August 14, 2001, Plaintiff's counsel conducted the deposition of Gerard Casey, Vice President and General Counsel of Defendant PepsiCo., Inc. ("PepsiCo"). During the deposition, plaintiff's counsel asked Mr. Casey what documents he had reviewed in connection with his preparation for the deposition. Counsel for Defendant PepsiCo objected and instructed Mr. Casey to not answer on the grounds of attorney-client privilege. Counsel for Plaintiff telephoned the Court and asked the Court to compel Mr. Casey to answer the question. At the time of the conference call with the Court, neither party provided the Court with any relevant citations or law on the issue. The Court denied Plaintiff's oral motion to compel Mr. Casey to answer the question inquiring into which documents he had reviewed prior to his deposition for the reasons set out in Alexander v. Federal Bureau of Investigations, 186 F.R.D. 200, 203 (D.D.C. 1999).

A party filing a motion to reconsider must predicate such motion on: "(1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." D. Kan. R. 7.3(b). The Court has broad discretion to grant or deny a motion to reconsider. Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 67 F. Supp.2d 1242, 1248 (D. Kan. 1999) (citing Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988)).

Plaintiff, apparently invoking the third ground for reconsideration of a non-dispositive motion under D.Kan. R. 7.3(b), requests that the Court reconsider its Order denying Plaintiff's oral motion to compel Mr. Casey to answer the question inquiring into which documents he had reviewed prior to his deposition. Plaintiff contends that the Court's ruling relying on Alexander, 186 F.R.D. at 203, is contrary to Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., 164 F.R.D. 250 (D.Kan. 1996).

In Audiotext, 164 F.R.D. at 252, defendants objected to producing a bound notebook of documents its witness reviewed prior to his deposition. They argued that the documents contained within the notebook were privileged, and thus not discoverable, because the documents in the notebook were assembled by counsel in anticipation of litigation and reflected counsel's mental impressions. Id. Judge Rushfelt held that the "selecting and grouping of information" by counsel did not transform discoverable documents into work product. Id. The Court noted that ...


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